Under Shroud of Mootness, High Court Grapples With Clean Water Rule

WASHINGTON (CN) – On the heels of the Clean Power Plan’s evisceration a day earlier, the Supreme Court heard arguments Wednesday on a challenge to the Clean Water Rule, another eco-friendly achievement of the Obama era with a dimming future.

Adopted in 2015 to replace 1977 standards that had been sowing inconsistent interpretations across the country for decades, the Clean Water Rule expands the definition of “waters of the United States” to include intermittent streams, wetlands and floodplains.

Though the new rule has been on hold pending resolution of legal challenges, efforts to repeal the rule by the Trump administration triggered objections just over a week ago from nine water-adjacent states.

At oral arguments before the Supreme Court on Wednesday, Justice Ruth Bader Ginsburg questioned the rule’s industry opponents about the elephant in the room.

“If, as seems likely, the rule, the ‘waters of the United States’ definitional rule is rescinded, is this case moot?” she asked.

Mayer Brown attorney Timothy Bishop, who represents the National Association of Manufacturers, called it too soon to tell.

“The comments [on the rule] came in on September 27,” he said. “There were thousands of them. We don’t know what the timetable is. We don’t know what the government will do.”

Assistant to the Solicitor General Rachel Kovner addressed Ginsburg’s concern on behalf of the Department of Defense.

Half a million comments were submitted on the rule, Kovner noted, saying there is no sign whether repeal would render all the challenges obsolete.

Bishop focused most of his argument against the rule about its own inconsistencies, saying the lack of understanding on where to challenge the rule has created duplicative, burdensome and costly legal battles.

Even less clarity from Congress has left companies at an impasse, he added.

Chief Justice John Roberts questioned the lawyer’s position that the best solution comes for challengers is to fight in U.S. District Court.

“But one of the consequences that your opponent points out is that, if you’re correct and these actions are brought in the District Court, each of the District Courts will have to review the entire administrative record,” Roberts said. “And presumably, you could have dozens of district courts engaged in that same activity and then it would have to be done all over again when you get to the court of appeals?”

Bishop conceded the inefficiency of such challenges but pivoted back to the rule’s “own efficiency problem.”

Pressing the Justice Department’s Kovner, Justice Neil Gorsuch said the court would prefer a “clear rule” and asked if, for now, the Department of Defense’s interpretation of the Clean Water Rule could hold up to that wish.

“I think the person who’s bringing a civil suit, absolutely, has to go to the court of appeals,” Kovner said. “The issue that this court has reserved is well, what if you are that defendant in an enforcement action?”

“So in every enforcement action, we’re going to be having district courts decide this question eventually?” Justice Gorsuch asked.

Kovner argued it might not mean that, per se, but a court will need to address the scope of “effluent limitations” and a due process requirement that, as a part of enforcement, grants an individual the opportunity to challenge the rule.